Prof. Dr. jur. GŁnter Reiner
The Legal Nature of Financial Derivatives

("Derivative Finanzinstrumente im Recht")


  In his thesis Professor Reiner develops the so called Failure-of-Consideration Approach (“Zweckverfehlungsansatz”, “causa-Ansatz”) which explains the existing of unenforceable risk contracts (wager, gambling contracts) on the one hand and enforceable risk contracts (for instance insurance contracts, most of futures, forwards, options and swaps) on the other hand. His approach describes the unenforceable nature of gambling contracts as a consequence of a failure of consideration.

A bilaterally binding contract is or at least should be unenforceable for a lack of consideration, whenever it is sure already at the moment of its conclusion that one of the parties will fail to achieve the purpose of its obligation towards the other party. That is the situation of a wager or gambling contract: One of the parties will necessarily be frustrated in the end.

In contrast to wager or gambling contracts, the situation of risk contracts like insurance contracts is quite different, which is why those contracts are enforceable. The insured party will achieve its object – getting security - for sure, regardless whether the insured risk will realize or not and she will not be frustrated if the insured risk does not occur. Therefore, from an ex-ante point of view, it is possible that both parties (including the insurer) derive a benefit from the contract.

For the same reason a derivative contract should be binding, if and only if the parties can close their risk position with an offsetting (hedging) transaction at any time of the contract period (derivatives in the true sense of the term). In that case, the contingent obligations of the contract are continuously valuable (and duplicatable) at market during the whole contract period. That is why such a derivative contract is a real exchange contract with a significant consideration just like an insurance contract and unlike a wager or gaming contract. To meet the prerequisite of being hegdeable there must be either a liquid market for the derivative’s underlying or, at least, for the derivative contract itself.

In addition, the fact that the contingent obligations of derivatives (in the true sense of the term) have a market price and therefore a value in itself implies some other legal consequences, especially regarding accounting and insolvency law.
There are good reasons to consider that, in the case of insolvency proceedings, ongoing derivative contracts are not ordinary executory (non-performed) contracts which entitle an insolvency administrator to opt between closing out or fulfilment of ongoing contracts. As the risk position of ongoing derivatives (in the above sense) can be hedged or replaced (dublicated) by alternative investments of both parties with a third person at any time, there is no real need for the continuation option. On the contrary, with regard to general principles of contract law it would be more coherent to consider an ongoing derivative as closed out ipso iure at the moment of the institution of the insolvency proceedings and to settle the derivative on the basis of its current market value. From this perspective, “Close-out Netting” and “Single Agreement” provisions in master agreements for financial derivatives (such as sections 2 and 6 of the 2002 ISDA Master Agreement) can conflict neither with the insolvency administrator’s right to repudiate or fulfil nor with the general restrictions on insolvency set-off. Thus, special netting legislation, entering into force in more and more countries ( in order to promote legal security, is fundamentally (but not always in the detail) compatible with the basic principles of contract and insolvency law.


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